What is Mediation? Why Mediate?
Mediation is a simple process for resolving disputes by which an independent mediator assists the parties to reach a mutually satisfactory outcome.
A mediation session involves a discussion of the dispute by the parties, not the formal presentation of witnesses, evidence and legal arguments of a trial. The session will usually be attended only by the mediator and the parties (and their lawyers, if they wish). The informality of the process means that most mediations are dealt with in half a day.
The mediation process is entirely voluntary. The mediator has no power to decide the outcome or to impose a decision upon the parties. Rather, the mediator's role is to assist the parties in their negotiations by identifying obstacles to agreement and developing strategies for overcoming them.
A mediation session is private and confidential. It is held in private and nothing that is said is repeated outside the mediation.
A mediation session normally begins with a joint meeting of the parties. The mediator first explains the process that will be followed and then invites the parties, in turn, to outline their view of the dispute. After identifying what is in issue, the mediator may have a number of separate meeting with both sides to analyse their case and to develop possible options for agreement.
The mediator will bring the parties together again with a view to the parties reaching a satisfactory agreement that both sides are happy with. The mediator does not make recommendations or give advice. Mediation allows the parties to make their own decisions and create their own solution.
Mediation works –it is thought that more than 85% of all mediations result in a settlement, even when previous settlement negotiations have failed. Why?
Parties and their lawyers can be reluctant to negotiate without the assistance of an independent third party mediator and can quickly become ‘positional’ in their negotiations, fearing that any "reasonable" offer will be taken as a sign of weakness or used by the other side as the starting point for the next round of negotiations. Mediation can provide a safe environment for negotiation as the mediator can control and guide communications. Unproductive discussions can be avoided and the parties can be encouraged to focus on the common ground and their own interests, rather than positions, to work together to reach satisfactory outcomes.
Mediation allows the parties to talk directly to each other so that each can understand clearly what the other thinks and feels. A more realistic view of the other side’s position, not filtered through lawyers and the court processes, can be obtained, which will often help in achieving an agreement.
Ben Battcock - Mediator
Ben is a Mediator practising in Canberra and Sydney with over 30 years’ experience in the law in Australia and the UK. He works with parties to reach innovative solutions to difficult situations. With his extensive experience in the law both in Australia and the UK and his first-hand experience of the difficulties, costs and unexpected twists and turns of litigation he is able to guide parties to quicker, cheaper and more satisfactory outcomes. He completed formal mediation training with the Australian Dispute Centre in 2009 and 2018. He is a Nationally Accredited Mediator.
